OPINION:THIS ARTICLE is not about the constitutional amendment on judicial pensions before the Oireachtas, that about which some judicial wag remarked: "Tread softly, for you tread on my pension".
I am writing about a missed opportunity which is likely to cost the State dear unless something is done quickly. Specifically, the system for disciplining judges is still the one which grew up in reaction to the absolute monarchs of the 17th century.
After the mid-17th century English civil war, parliament got the upper hand over the king, and one of parliament’s first moves was to establish the judges’ independence. In 1701 it was held the best way to do this was to provide that judges held office “during good behaviour” and could be removed only by a resolution of both houses of parliament. This arrangement was brought, unchanged, into the modern Irish Constitution. This was unfortunate. For, by now, parliaments are subject to the party whip and, as President Ford of the US put it: “You don’t need evidence: you only need a majority.”
The lame ducks released by the failure to think innovatively in 1922 or 1937 came home to roost in the Sheedy episode in 1999. In 2004, then Circuit Court Judge Curtin was accused of downloading child pornography (he has consistently denied this). Attempts to remove the judge were hampered by a constitutional challenge and by the fear an election would be called before dismissal proceedings had been completed in the Oireachtas.
In April 2010, judges publicly affirmed support for legislation to establish a system of discipline akin to those in other modern constitutional democracies. This system would involve a judicial council for setting standards of conduct; adjudicating, in individual cases, whether the standards had been broken, and imposing a sanction.
Implementation has been made conditional on the requirement there should be recording facilities in all courthouses before the new scheme is brought in. This is now coming close to fulfilment.
There remains a major snag. The Constitution states, in article 35.2: “All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.” It is at least arguable that the new disciplinary system, especially in the case of judges appointed before the new scheme, would undermine judicial independence as it was contemplated in the Constitution.
On the other side, the case for saying the new system was constitutional would have to impose a lot of weight on the three words “ . . . and the law”, in that it would rely on these words to cover and authorise the new scheme.
These words would be a slim straw on which to rely because, in other contexts, judges have taken the view that this expression is to authorise extra detail, rather than any radical change from what is laid down in the Constitution.
No one can know how such a challenge would go, and the Curtin episode shows certain judges would not be slow to take this sort of case. Although it ultimately failed, the Curtin case shows the delay, difficulty and uncertainty to which the possibility of this sort of challenge would lead. The obvious way to avoid this would be to lay a secure constitutional platform beneath the new system of discipline.
Nor is any of this controversial. Some version of the Judicial Council with responsibility for major decisions regarding judicial discipline has been recommended by two judicial committees, one chaired by Chief Justice Susan Denham and the other by then chief justice Ronan Keane (in 1998 and 2000 respectively), as well as by the Constitutional Review Group (1996) and the All-Party Oireachtas Committee (1997). The committee remarked, reasonably enough: “Article 35.2 should be amended to allow for regulation by the judges themselves of judicial conduct, in accordance with the doctrine of the Separation of Powers.”
Most other recommendations also assumed this radical change would be underpinned by a constitutional amendment. In 2000, Government proposals to amend the Constitution making provision for disciplining judges were at an advanced stage before the Dáil when they were abandoned because of opportunistic objections from the then opposition parties.
Why on earth has all this wisdom been lost sight of?
There is one positive, which is important in the present context. It is that the appropriate draft amendment exists, in a highly polished state, in the archives of the Attorney General. It would be very wise and statesmanlike of this Government to put it before the people, along with the other two proposed amendments.
David Gwynn Morgan is professor emeritus of law at University College Cork